Balkinization  

Saturday, October 25, 2008

Further notes from our constitutional dictatorship

Sandy Levinson

Today's NYTimes includes a story, "Administration to Bypass Reporting Law," about the refusal of the Bush Administration to comply with a statute requiring a report to Congress regarding activities that affect the privacy interests of Americans. The statute provides that the chief privacy officer of the Department of Homeland Security is to submit the report "without any prior comment or amendment" by superiors at the Department or the White House. Michael Chertoff has advised Congress that his department would not "apply this provision strictly" because of its ostensible infringement on presidential power, as detailed in an OLC memorandum. Pennsylvania Senator Arlen Spector (Republican) pronounced this argument "unconstitutional." More interesting is Sen. Specter's comment that "[t]his is a dictatorial, after-the-fact pronouncement by [President Bush]in line with a lot of other cherry-picking he's done on the signing statements" (emphasis added). "To put it diffierently, I don't like it worth a damn." I suppose it's easier for the notably spineless Specter, who, among other things, voted for the MCA in spite of his own (correct) view that it was unconstitutional, to become assertive when Mr. Bush has officially become the most unpopular President in the history of presidential polling and John ("I voted with George Bush 90% of the time") is attempting to put as much distance as possible between himself and the erstwhile leader of his party--and of the supine Republicans in Congress--for the past eight years. Still, I am happy to get confirmation of my general analysis wherever I can find it.

It may be worth noting that the OLC opinion was signed by the egregious Steven G. Bradbury. The opinion was described by Neil Kinkopf, now a profesor of law at Georga State University, who was in the OLC (with Marty Lederman) during the Clinton Administration, as another example of the Administration "run[ning] amok" on its notion of executive power. Prof. Peter Strauss of Columbia agrees that that the law is constitutional. But let's say the Administration is correct (whatever exactly that might mean), and that the law is unconstitutional. So from my (and Specter's?) perspective, this would be just another example of the extent to which the Constitution, "correctly interpreted," instantiates "constitutional dictatorship." And if the Administration is, yet again, wrong in its theory of the Constitution, then it is just another example of the unconstitutionally dictatorial aspects of the Bush presidency. And, of course, he will remain in office, thanks to our defective Constitution, until January 20, 2009, with all of the "dictatorial" powers at his command, legal or otherwise.

Comments:

I direct you to the impeachment clause. Congress has the tools to rein in Bush. Me, I'd have impeached him years ago, the President swears an oath to uphold the Constitution, and his failure to do so in good faith is "high crime or misdemeanor" enough for impeachment so far as I'm concerned.

You don't declare a car "broken", and junk it, because the driver has a different destination in mind than you do. Congress has chosen to let Bush be. Handing them more tools to do what they don't WANT to do is a waste of time.
 

Sandy:

Why is every separation of powers dispute between the two elected branches evidence of a dictatorship to you? Our elected branches have been tussling long before Mr. Bush occupied the Oval Office and will continue long after he leaves in a couple months.

Indeed, if Mr. Obama is elected in a couple weeks, you can depend upon the veteran leadership in a Dem Congress to attempt to take advantage of the green young President and exert congressional authority over the executive as far as they can as they did when Mr. Carter was rolled in the late 70s. If Mr. Obama objects to such a power grab and tells Congress to take a hike, I wonder if you will brand The One a "constitutional dictator." Somehow I doubt it.
 

This comment has been removed by the author.
 

The Constitution provides us a model of government of conflicting prerogatives, but our contemporary intellectual ideal of "reason" is based on collaboration. Adversarialism is frowned upon,
while reason is now associated with the individual to the point that we prefer to follow leaders than defend the prerogatives of any community, even a community of legislators. We're seduced by "the reasonable." But the point of adversarial systems is that this will always happen if one side lets their guard down.
Unchecked power corrupts.

There is no answer to the question of which branch of government the Executive or Legislative is "meant to be"[sic] preeminent. The question itself is absurd. Our system is a system of formal relations not a system of truths.

There are no solutions; there are only processes. Seeing the sciences as the model for intellectual life has done nothing but weaken us. For academics to posit the governing conflict in society as being between rationalism and irrationalism is to argue for an obscenity.

Our system is made to be vulgar, Watching Sanford Levinson being harassed by Brett/DePalma is like listening to a prep-school boy in a street corner basketball game whine about being fouled. It's not a compliment to anyone, or even me that all I can think of is cliched lines from W.B. Yeats.
 

As a matter of fact, I most certainly don't believe that every separation-of-powers dispute is evidence of dictatorship. What I found interesting and worth commenting on is that Arlen Specter (perhaps revving up to face Chris Matthews in 2010) is willind to use the "d-word" with reference to George W. Bush.

To repeat for the umpteenth time, impeachment is useful if the president is a criminal, and I think it's truly debatable whether Bush meets that standard. He has, after all, been able to find presumptively competent lawyers who have assured him that everything he wants to do is in fact constitutional (with the possible exception of ignoring FISA). But the impeachment clause, as currently interpreted, is of no help at all if the president is "only" manifestly incompetent and possesses no political authority even in a time of national and international crisis. THAT is what is defective in the Constitution. Sooner or later--I hope sooner--readers will realize the irrelevance of the impeachment clause to my main point (which is not to say that I disagree that a reasonable person might believe that Bush deserves to be impeached for his arguably criminal conduct vis-a-vis FISA).
 

What do you do when a legislature has weakened itself as much as this one has? Congress has imagined itself into immobility.
What's the cure for cowardice?
 

Alas, I have no good answer to the last question. The "cure" is a popular uprising, which we might be seeing in this election that sweeps tons of Republicans out of office in part for the abject failure to stand up to the Bush Administration in any serious respect. Of course, that won't help with regard to those Democrats who collaborated because of their (maybe even justified) fear of being portrayed as traitors if they didn't submit to the fear-laden threats by the Administration.
 

If the congress could remove the president so easily then there would be less of a balance, and maybe a government by congress with an executive spokesman is what you would prefer. Maybe I'd agree, I'm not sure.
But as it is I think the failure here is Congress and the country at large. No one wants to be where and what they are: everyone wants to be beautiful and rich. The middle class like Congress has not defended it's prerogatives and is only beginning to now. Social democracy is individualism constrained by civil society. Our intellectual class is going to be the last to figure that out.
The question is, if Obama moves to continue with Bush's arguments for executive authority, will the democratic led congress block him? They should, of course, but more importantly they shouldn't have to.
 

There is no answer to the question of which branch of government the Executive or Legislative is "meant to be"[sic] preeminent.

If you mean no Platonic answer, I agree. But the Lockean answer was clear that the Legislature was to be pre-eminent:

“In all Cases ... the Legislative is the Supreme Power. For what can give Laws to another must [necessarily] be superior to him. [A]nd since the Legislative is ... Legislative of the Society, ... by the right it has to make Laws for all the parts and for every Member of the Society, prescribing Rules to their actions and giving power of Execution where they are transgressed, the Legislative must needs be the Supreme, and all other Powers in any Members or parts of the Society, derived from and subordinate to it.”

That's a direct consequence of the doctrines of (a) popular sovereignty, and (b) representative government.

What's the cure for cowardice?

A much harder question. One answer, IMO, is that people tend to become braver when they see their fellows stand up. Bravery is contagious. I think we'd see more of this willingness to stand up if Congress were more representative (proportional representation in the Senate, no gerrymandering in the House).

It may not be enough, by itself, to institute those reforms. We may very well need to amend the Constitution to put additional limits on the President, as Prof. Levinson has been advocating.
 

"To repeat for the umpteenth time, impeachment is useful if the president is a criminal..."

To repeat for the umpteenth time, impeachment is useful for whatever the relevant majorities in Congress view as impeachable. Or do you suppose an 'improperly' impeached President is going to appeal to the courts and get it reversed?
 

Brett is correct. The use of the term misdemeanors as a ground for impeachment simply means a misdeed.
 

I am stunned by Brett's complete legal realist cynicism, since he usually presents himself as the stern defender of what "the Constitution really means." And there is no plausible argument that "impeachment" can legitimately be said to mean whatever the Congress decides it means, even if it is true that there would be no judicial review. That is to accept the equivalent of "congressional dictatorship," i.e., decision unconfined by any semblance of intellectual integrity and motivated only by a desire to exert power.
 

"To repeat for the umpteenth time, impeachment is useful if the president is a criminal, and I think it's truly debatable whether Bush meets that standard. He has, after all, been able to find presumptively competent lawyers who have assured him that everything he wants to do is in fact constitutional (with the possible exception of ignoring FISA)"

"Presumptively competent"???

People like David Addington and John Yoo are MANIFESTLY incompetent -- folks simply do not argue that 1 + 1 = 0 or 3 in good faith.

There isn't any doubt that these people are in fact criminals.

And you know what?

I think maybe it's time to be talking about the instutional integrity of the bar and the legal academey in this context. Like maybe the reason we have so much bad constitutional law is that we have so many incompetent constitutional lawyers, who operate with so little actual control over their "presumptive competence".
 

Complete legal realism? "High crimes and misdemeanors"; Do you really think the implication of this is that the President can be impeached for leaving his turn signal on? Illegal left turns? Like Bart says, it means "misbehavior".

I, frankly, am stunned by a guy who is cool with interpreting the interstate commerce clause to reach intra-state non-commerce going all hyper-formalistic on the impeachment clause. It's like you don't want to admit that the Constitution ALREADY allows Congress to remove a sitting President, because it would mean the problem isn't that the Constitution doesn't give them that option, it's that they don't WANT TO.

That's the problem here: Not the executive branch. That branch has merely moved into the vaccum left by a legislature that wants to posture, suck down kickbacks, and never, ever have to be in a position to be blamed if things go south.

Removing a President would be responsible. Congress doesn't do "responsible".
 

Well the reality is that impeachment is lot easier to talk about than actually pull off, especially when you have as many Republicans in the Senate as we do now.

Hopefully, that will soon change. In any case, Mr. Bush and his gang can and should be tried and convicted for their crimes after they leave office.
 

The first election followed by the departing administration being criminally prosecuted for administration policy stands a good chance of being the last election where parties change places and the loser departs peacefully.
 

Wow, Sandy, you attract some pretty nifty trolls.

Off-topic, but I think this speaks to the quality of the full discussion: I went to "prep school" (i.e., a private, college-preparatory high school) and used to play lots of "street corner basketball" (i.e., pickup games on urban playgrounds where black kids play). Nobody quotes Yeats, and nobody whines.

If you have to cut from whole cloth to make a point, your discussion is in trouble.
 

"The first election followed by the departing administration being criminally prosecuted for administration policy stands a good chance of being the last election where parties change places and the loser departs peacefully."

BULLSHIT. All that tells me is that you think everyone is as dishonest as you Republican arm-chair Nazis are.
 

well wc.
I don't know what prep school you went to and I won't judge your game, but I think it's safe to assume I'd find both somewhat lacking. You should read up on Yeats, the reference wasn't that obscure. And you should read Mark Graber while you're at it.

Also: even when I'm expressing annoyance at his arguments I address Professor Levinson by his full name; but perhaps you know him better than I do.

Finally, whatever trials there may be will be on foreign soil, and any American administration will protest loudly. I won't, but that's irrelevant.
 

Well I think your lazy cynicism is a pure cop-out DG --

Do YOU believe in the law or not?

Are YOU willing to tolerate murder and torture, etc, or not?

There isn't any reason they can't be tried on US soil, and there is EVERY reason to think that it's IMPERATIVE that they be tried on US soil.
 

"There isn't any reason they can't be tried on US soil."
The country has acquiesced to the policies of this administration. The "truth commission" will happen elsewhere. Ours will follow, but it will be a while.
I'm not interested in your moral indignation any more than Professor Levinson is interested in mine. I support the Palestinian right of return and the immediate dissolution of the "jewish" state. I think the UN "Security Council" is an abomination and should be abolished. I think Iran as it stands has as much right to a nuclear deterrent as Israel. And I trust its government more than I trust the government of Israel. To a greater degree I trust the people of Iran more than the people of Israel.
Israeli culture is fundamentally irrational.
Should I go on?
I'm predicting the future not defending it.
 

Well you aren't much of a fortune teller.

It's got nothing to do with "moral indignation" -- these people are murderers who set out to systematically violate our own laws with absolute contempt for the oaths that every last one of them swore when they took office: there is no greater threat to the safety of this nation or the world.

And if you don't understand that, you're a fool.
 

"And if you don't understand that, you're a fool." I understand that perfectly well. And I understand there is a degree of separation between our current leadership and every other US administration led by killers who've set out to violate the laws of countries other than this one. You view that separation as moral and absolute, to me it's mostly linguistic; but still it's important.

You blame this administration and the pendulum has begun to swing away from its excesses; but change is not justice, only a return to normal. It will be a long time before the people of the united states as a whole accept their responsibility for what's happened. In the meantime there may be a truth commission, but no prosecutions for the political leadership. Some people may not be able to leave the country without risking arrest.

For the present the best that we can hope for is that the leadership -and the people they represent- will stop repeating the same basic mistakes. I am not so sure that's going to happen.
 

sandy levinson said...

And there is no plausible argument that "impeachment" can legitimately be said to mean whatever the Congress decides it means, even if it is true that there would be no judicial review. That is to accept the equivalent of "congressional dictatorship," i.e., decision unconfined by any semblance of intellectual integrity and motivated only by a desire to exert power.

Really? I would offer the impeachment and near conviction of Andrew Johnson for firing his own Sec War for working with Congress to undermine the President's policies.
 

The debate between CG and DG seems a bit silly. They appear to agree on the basics; DG is just more cynical (realistic?) about what is likely to happen in this country.

Anyway ...

But the impeachment clause, as currently interpreted, is of no help at all if the president is "only" manifestly incompetent

Not the current situation. This is reflected by even Sen. Specter, who, e.g., thinks stripping habeas was unconstitutional. Even if he enabled it in the end, we let conspirators help convict their fellows all the time.

As an aside, any Constitution workable in this world would probably open up some chance of "dicatatorship" moves. Consider the power of a prosecutor over the life and death of a defendant.

THAT is what is defective in the Constitution.

I'm unsure if your ideal Constitution would close the gap. If I understand it, you want some parliamentary style opening, but it would probably require some supermajority followed perhaps by an election. The supermajority helped by a less gerrymandered etc. legislature.

This along with the impeachment issue gets to the core of the debate. This supermajority on many of the issues you care about would have for a long time (even now, perhaps) would be hard to come by. Even now, McCain is likely to get over 40% of the popular vote.

The will required is worsened by our system, but is not unable to be expressed by it. This is Brett et. al's point -- in OUR SYSTEM, there are ways to block Bush.

This includes impeachment. We need not define it to include traffic violations* to get there. Bush et. al. clearly did enough to fit under its rubric. Likewise, the spending power, power of appointments, et. al. all provide a check, if the will was there. See, e.g. the Senate blocking Johnson's Supreme Court picks, helping to lead to the Nixon Supreme Court.

The failure of the current bunch, with the tools available, is ultimately a defect in our nation's will. The same 14A that allows Colin Powell a shot once made him a second class citizen.

That is what you seem to miss sometimes. Anyway, this idea that it is somehow a cloudy question if Bush et. al. committed an impeachable offense is ridiculous. The failure of the people to act accordingly, as they failed to do when the signs were already there in 2004, is a different matter.

---

* It is not just a "misdeed." The word "high" emphasizes this fact.

Congress has the brute power to make it such, but the rare use of the power underlines they realize this as well, no matter when Rep. Ford said (in a failed effort, as you might recall)
 

JFK's book, ghostwritten or not, made a dissenting senator in the impeachment of AJ a profile in courage. This reflects the understanding of many, though not all, that it was an illegitimate political move. See also, impeachment of Justice Chase.

If we reflect upon the constitutional understanding of the time, years before Myers v. U.S., there was a legitimate debate over the breadth of unilateral removal power, though (see Brandeis' dissent) the removal of a senior official (one not even appointed by Johnson) was not a great example of the principle.

OTOH, though Hamilton later changed his mind on the point, see Federalist 77:

IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a
person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself.


Anyway, at the end of the day, the fact Congress here seemed to cross some line helped lead to Johnson's acquittal. Thus, it doesn't really interfere with SL's point.
 

If I were simply a cynic I wouldn't be wasting my time talking about any of this, let alone the possible decisions of the next administration.
I think it's important to prioritize.

"Simply obtaining the ability to quickly assemble a nuclear weapon would effectively give Iran a nuclear deterrent and drastically multiply its influence in Iraq and the region." [see the links in a previous comment]
According to the logic of US bi-partisanship, including that of a large segment of the soi-disant Reality-Based community Iran should not be allowed to defend itself.
 

Well the debate between me and DG couldn't be any more simple: it's simply a matter of doing what you can to do what's right vs. sitting on your ass pretending there's nothing you can do but generate sophist white noise.

I've literally spent seven years of my life investigating these people for war crimes. I've done that at the expense of my savings, my career, and my health. Do I have any guarantee of success?

Nope.

Did Ben Franklin have any guarantee of success when he signed the Constitution?

Nope -- and judging by the results, I'd have to say his failure is lot more clear than mine in the here and now, even though I'd readily admit that he was a lot more able than me. But then I'm not a "results player" (as we say in Bridge), and understand just how difficult these problems really are. All I know is that we damn well better keep trying, because if we don't solve them, sooner or later they will be the end of the entire human race.

I suspect there were lots of Germans who thought it was silly to worry about the stench coming from the death camps, or to question the policies of a charismatic and wildly successful and popular leader like Adolf Hitler also. There were even people in this country who thought that fighting Hitler was the wrong war. Pat Buchanan even thinks that fighting Hitler doomed "western civilization", which is about as idiotic a theory as you'll ever hear.

I don't mean to be unkind to anyone, but I've studied too much history to be in doubt about this stuff, and all the excuses for doing nothing were stale 2,000 years ago.
 

Qualifiers matter.

I didn't say DG was "simply" a cynic, but more cynical (and/or realistic). Likewise, we are not talking about someone just sitting on one's butt. At the end of the day, good comes in many forms, including from truth tellers of all sorts.

And, realistically, there was a decent chance of success when the Constitution was signed. There is a more uphill battle here. Not that that means the battle isn't fundamental as well.
 

Well Joe, I certainly get that distinctions matter... like for example, those between approval, complacency, and acquiescence.

But a reasonable chance of success in what precisely?

Saddling us with a government of murderous war criminals like the Bush administration perhaps?

I doubt that was what you meant, but consider the motivation behind some of the things that critics like Sandy and myself see in the Constitution, namely, to effect a compromise between the Northern and Southern states in order to preserve the union -- i.e. to placate the Southern slave-owning class.

That was a success all the way up to December of 1860, whereupon the Union fell apart and quickly found itself mired in a brutal war that killed over half a million people.

Maybe it would have been better to just let the Confederation disintegrate into 13 independent states back in 1787. Maybe what is today the richest and most powerful nation in existence would have been even more rich and powerful had that happened.

There's no way to know -- like it said in Semi-Tough, "what could have happened did" -- but we know for certain that some of the most glaring defects in the Constitution are a direct result of people in 1787 being willing to compromise with folks who thought they had a god-given right to buy and sell other people like cattle. Defects like the electoral college and the apportionment in the Senate, both of which are outrageously undemocratic.

DG speaks for himself, not the people, and this person , me, does not acquiesce in the crime of Geroge Bush and his gang. How likely it is that they will be prosecuted I do not know, but I do know this:

1) There is probable cause to believe they have committed a number of very serious crimes.

2) There is enough evidence to convict them if an impartial jury hears a fair trial of the facts. Indeed, their guilt can be proven to a logical certainty on the strength of their own public record.
 

Charles, have you published any papers or other results of your studies of the Bush administration?
 

This comment has been removed by the author.
 

Mattski,

Oh sure...

The PEGC website is HERE, and has been been online one way or another (orinally hosted on my own PC running Apache under Win98 over a DSL) since late 2002.

PEGC Update (an email news digest with some editiorializing by me from time to time) is HERE goes to my own distribution list, which consists of @ 100 select individuals plus the JUSTWATCH and TILDS lists.

My articles and briefs are HERE, and on PEGC Blog (more recent stuff).
 

Thank you, Charles!
 

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